Intra University Moot Court Competition 2016

T-71

In the High Court of Bombay

Jack Samuelson and Brightwalker Studios Ltd. (Petitioners)
Versus
Earl Grey and Edified Comics Ltd. (Respondents)

Memorial for the Respondents

Intra University Moot Court Competition 2016

Table of Contents
1. Index of Authorities

2. Statement of Jurisdiction

3. Statement of Facts

4. Issues

5. Summary of Arguments

6. Arguments

7. Prayer

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Intra University Moot Court Competition 2016

Index of Authorities
Books referred
1. Cornish and Llewelyn, Intellectual Property(5ht edition, Sweet & Maxell 2003) 624.
2. Intellectual Property, Elizabeth Verkey, by Eastern Book Company
Statues referred
1. Indian Copyright Act,1957
2. Indian Trade Marks Act,1999
3. The Constitution of India.
Case laws:
1. Affiliated Enterprises Inc v Gruber, 86 F2d 958 (1st Cir 1936)

Intra University Moot Court Competition 2016

Statement of Jurisdiction
The respondents are filing their written statements in response to the suit filed by the petitioners.
The respondents are filing this statement under Article 226 of The Constitution of India. The
respondents are thereby filing a counter claim.

Intra University Moot Court Competition 2016

Statement of Facts
The counsel for the respondents respectfully shows that:
1. Jack Samuelson, the petitioner conceived Ballad of malice and power. His masterpiece
comprised of an entire fantasy land of kings, dragons and mystical creatures in quest for
ultimate power. Jack Samuelson decided to publish the Ballad of Malice and Power in a
series of 7 books.
2. A Flagon of Dreams was released in 1994. Subsequently he published the other books
at irregular intervals with the last one in 2014. Digitalized and printed versions were also
available.
3. Brightwalker Studios Ltd.(BSL), A US based network and production company, the
petitioner successfully sealed a deal with Jack Samuelson in 2005 and acquired the
exclusive license for a full fledged TV show called Valar Dobaeris: The Beginning.
BSL released the first seven shows in 2009.
4. The Valar Dobaeris show was available on TV channels in US; however for viewership
in India it was available through a paid online portal called ZoomIn as it on American.
5. Earl Grey, the respondent who is a fan of Ballad of Malice and Fire is fascinated and
intrigued by a particular character named Boromir Bohmia. It mentions the she was
disappointed with the fact that Boromir Bohemia finds little mentions. The above
mentioned character Boromir Bohemia plays an important role in shaping up the
political landscape in ballad of Malice and Power.
6. Earl Grey sketched and granted Boromir Bohemia a new plotline.
7. Earl Grey collected all the mentions of Boromir from the seven books and defined him as
a protagonist and employed her own imagination. Earl Grey called her own version as
Bohemian Rhapsody.
8. Earl Grey expresses her comic version The Bohemian Rhapsody on her own blog called
The Pickwick Paper, neither Jack Samuelson nor BSL pursued an action against Earl
Grey.

Intra University Moot Court Competition 2016

9. Gradually, The Bohemian Rhapsody became popular and Earl Greys blog The
Pickwick Paper broke the 10,000 rank barriers in Alexa Global website ranking system.
Earl Grey also hosted advertisements on The Pickwick Papers and raked decent amount
of revenue from advertisers.
10. Edified Comics Ltd. (ECL), the respondent registered at Mumbai signed a deal with Earl
Grey securing all of the rights of The Bohemian Rhapsody for a hefty sum of money.arl
Grey also promised that she will retain the creative control over the story and will be
subjected to the ECLs creative team. ECL aims to distribute the comic across the globe
by the mid of 2016.
11. ECL started to sell various merchandise ECL of Bohemian Rhapsody in India in order to
generate hype and monetize the existing popularity of Boromir Bohemia. Such products
include apparels, costumes, artworks, wallpapers, etc.

On 4th January 2015, ECL

obtained the registration in world for BOROMIR in India along with the registration for
the pictorial representation for Boromir from the comic book.
12. The last episode for the show of Ballad of Malice and Power was released a year after the
publication of the last book of Ballad of Malice and Power. The last episode garnered
around 20 million views on the release date itself. Till the end of the story of Ballad of
Malice and Power Boromir Bohemia maintains his pivotal position in the overall
plotline.
13. BSL, the petitioner was in no terms oblivious to depict Boromir Bohemias individual
strength. Subsequently the petitioners ECL developed a pre-sequel to the show called
Boromir the Conqueror based on the life and conquest of Boromir Bohemia. The
petitioners commenced marketing and released the trailer-teaser in June 2015. The show
Boromir the Conqueror was released on 9th February 2016.
14. Meanwhile ECL released The Boromir Rhapsody at the Comic craze event in Mumbai
on 16th august 2016. Analysis predicted that the respondents version of Boromir
Bohemia (The Bohemian Rhapsody) was highly likely to beat all previous records.
15. The petitioner highly aggrieved by the statements in the analysis Jack Samuelson and
BSL filed a suit against the respondents Earl Grey and ECL for misappropriating their
character Boromir Bohemia. Furthermore the respondent counterclaims against BSL for
unlawful use of its trademark on the Boromir the conqueror.
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Issues:
1. Whether the respondents misappropriated the character Boromir Bohemia?
2. Whether the petitioners unlawfully used the trademark Boromir which was a registered
trademark of the respondents?
3. Whether the respondents infringed the copyright held by the petitioner?

Intra University Moot Court Competition 2016

Summary of Arguments
1. Whether the respondents misappropriated the character Boromir Bohemia?
No, the respondents have not misappropriated the character Boromir Bohemia. The
character Boromir was used by the respondents in a manner not misappropriated and
has given it a different storyline.
2. Whether the petitioners unlawfully used the trademark Boromir which was a registered
trademark of the respondents?
Yes, the petitioners have used the trademark unlawfully without the consent of the
respondents who are the registered owners of the trademark. The respondents claim the
right to use it.
3. Whether the respondents infringed the copyright held by the petitioner?
No, the respondents never infringed the copyright held by the petitioner and used their
trademark in respect to the goods or comic series that was released by them only after
they secured a trademark.

Intra University Moot Court Competition 2016

Arguments advanced:
1. Whether the respondents misappropriated the character Boromir
Bohemia?
No.
If the respondents work is nothing but literature intimation with some variation, a work
cannot be said to violate the copyright in another simply because there is similarity
between the two, if both deal with same subject or have the same subject in the case
Affiliated Enterprises Inc v Gruber 1. In this case the respondent interpretation of The
Bohemian Rhapsody and the petitioner interpretation Bohemia Conqueror relates to
the same subject. The respondents states that the character Boromir was sketched a new
body face and had a mind, even a storyline was given to it by the respondents and not a
copy of the character created by the petitioner. The respondents humbly submit that
trademark registrar gave them a trademark which was registered under the Trademarks
Act, 1999.

2. Whether the petitioners unlawfully used the trademark Boromir

which was a registered trademark of the respondents?
Yes.
The respondents state that respondents are the lawful holder of the trademark Boromir
under section 23 of the Trademarks Act,2. The respondents have registered the above
mentioned Boromir trademark on 4th January 2015. The respondents have got an
exclusive right over the word and even have acquired a right covering it in a comic book.
So, the right of the respondent is reserved in this regard and it is covered well by the
section 29 of the Trademarks Act, 1999 which stands for the infringement of the
trademark. The section 29 (2) and (4) of the Trademarks Act3, states that the infringement
of the trademark by a non-registered person or proprietor in relation to a mark which
1

86 F2d 958 (1st Cir 1936)

Indian Trademark act,1999
3
Indian Trademarks act, 1999
2

Intra University Moot Court Competition 2016

because of its identity or similar nature to the goods or services of the registered
trademark. So, this is clearly an infringement under the aforesaid provisions and sections
of the Act given the evidence the respondents have in the form of the registration title
over of the trademark.

3. Whether the respondents infringed the copyright held by the petitioner?

No.
Copyright does not protect characters outside the confines of the particular context in which
is a character is developed.4The respondent conceived the character Boromir to one particular
context and the petitioner have not registered the particular copyright protection for the
character. Therefore, it can be concluded that the respondents have not infringed the
copyright that was held by the petitioner.

Cornish and Llewelyn, Intellectual Property (5ht edition, Sweet & Maxell 2003) 624.

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Intra University Moot Court Competition 2016

Prayer:
1. The respondents pray the Court to pass orders that the respondents have not infringed
the copyrights of the petitioner.
2. To pass an order that their trademark was violated by the petitioners.
3. To award a compensation of Rs. 12,00,00,000 (Twelve Crores).
4. Awarding the cost of the suit.
5. Any other order which the court may deem it to be fit.

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